President’s Recess-Appointment Power Cut by Supreme Court

June 26 (Bloomberg) -- Bloomberg’s Megan Hughes reports that the Supreme Court has ruled to curb presidential recess-appointment power on temporary appointments without Senate approval. She speaks on “Market Makers.”

The U.S. Supreme Court curbed the president’s power to make temporary appointments without Senate approval, backing congressional Republicans and dealing a blow to President Barack Obama.

The justices ruled unanimously that Obama exceeded his constitutional authority when he appointed three members of the National Labor Relations Board in January 2012. Four Republican-appointed justices would have gone even further in limiting the appointment power.

The case was the court’s first look at a constitutional provision that lets the president make temporary appointments to high-level posts during Senate recesses. The decision means the Senate can all but nullify the recess-appointment power by holding brief “pro forma” sessions every few days.

“We must give great weight to the Senate’s own determination of when it is and when it is not in session,” Justice Stephen Breyer wrote in the court’s majority opinion.

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Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito would have ruled on more far-reaching grounds. They said the recess-appointment power applies only after a yearlong congressional session ends and before the next one begins, not during breaks within a session.

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President Barack Obama during the League of Conservation Voters Capital Dinner on June 25, 2014 in Washington, DC. Close

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President Barack Obama during the League of Conservation Voters Capital Dinner on June 25, 2014 in Washington, DC.

Writing for the group, Scalia also said valid appointments could be made only when the vacancy itself occurred while the Senate was adjourned.

Historical Debate

“The limitation upon the president’s appointment power is not there for the benefit of the Senate, but for the protection of the people,” Scalia wrote.

Breyer said practices dating back two centuries supported a broader interpretation. He said presidents have made thousands of intra-session appointments and that President James Madison, who served from 1809 to 1817, filled vacancies that had existed before a recess began.

“We are reluctant to upset this traditional practice where doing so would seriously shrink the authority that presidents have believed existed and have exercised for so long,” he wrote.

Scalia said the court shouldn’t defer to “a self-aggrandizing practice adopted by one branch well after the founding, often challenged and never before blessed by this court.”

Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer’s opinion.

10 Days

Breyer said the Senate was in session when Obama made the NLRB appointments because lawmakers retained the power to conduct business during that time. He said any recess of fewer than 10 days would be “presumptively” too short to permit recess appointments.

Photographer: Andrew Harrer/Bloomberg

Chief Justice John Roberts. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito would have ruled on more far-reaching grounds. They said the recess-appointment power applies only after a yearlong congressional session ends and before the next one begins, not during breaks within a session. Close

Chief Justice John Roberts. Roberts and Justices Antonin Scalia, Clarence Thomas and... Read More

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Chief Justice John Roberts. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito would have ruled on more far-reaching grounds. They said the recess-appointment power applies only after a yearlong congressional session ends and before the next one begins, not during breaks within a session.

The ruling is likely to leave presidents with few if any opportunities to make recess appointments. The Senate’s breaks tend to be shorter than 10 days. And as long as divided government reigns in Washington, the party opposing the president will be able to force the Senate to hold pro-forma sessions.

The 2012 sessions occurred because House Republicans used their power under a different part of the Constitution to prevent the Senate from adjourning.

Senator Charles Grassley of Iowa, the top Republican on the Judiciary Committee, called the ruling the most significant rebuke of a president since the court ordered Richard Nixon in 1974 to produce tapes related to the Watergate investigation.

Lawlessness Criticized

“We should all be thankful that the Supreme Court has reined in this kind of lawlessness on the part of the administration,” Grassley said today on the Senate floor.

White House press secretary Josh Earnest said the administration was “deeply disappointed” by the ruling.

“We disagree with the court’s decision,” Earnest told reporters traveling with the president to an event in Minnesota. “We’re still reviewing it, but of course we’ll honor it.”

The court still preserved “some important components of the president’s authority, and he will not hesitate to use it,” Earnest said.

The ruling raises questions about hundreds of decisions issued by the NLRB since 2012. Those include the one before the justices involving soft-drink bottler Noel Canning Corp. of Yakima, Washington.

Hotel Association

“The board was not lawfully empowered to issue rulings and policies affecting the American workforce,” Katherine Lugar, chief executive officer of the American Hotel & Lodging Association, a Washington-based lobbying group, said in a statement.

The board now will need to rehear those cases, said Steve Bernstein, a labor lawyer at Fisher & Phillips in Tampa. At least some disputes will go before three-member panels that include two Republicans, he said.

“The luck of the draw could swing in favor of the employers in those cases,” said Bernstein, who represents management.

NLRB Chairman Mark Gaston Pearce said in a statement that the board is analyzing what impact the decision will have on cases in which the recess appointees participated.

The NLRB now operates with a full complement of members, thanks to a change in Senate rules allowing a simple majority to confirm administration nominees.

Less Impact

“The impact of today’s ruling is far less than it might have been,” Richard Trumka, president of the AFL-CIO labor federation, said in a statement. “We are confident the NLRB will handle the pending cases impacted by Noel Canning efficiently and expeditiously.”

Noel Canning’s lawyer, Noel Francisco of Jones Day in Washington, said the ruling “vindicates the constitutional rights” of his client.

The Constitution says the president “shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” A separate provision requires the president to get the Senate’s “advice and consent” on high-level appointments.

Obama’s recess appointment of the NLRB nominees infuriated Republicans, escalating partisan tensions over the president’s nominees.

Three Members

The president, saying lawmakers were in recess, appointed Sharon Block, Terence Flynn and Richard Griffin on Jan. 4, 2012. He also named Richard Cordray as a recess appointee to head the Consumer Financial Protection Bureau.

The rancor grew worse throughout 2012 and 2013, with Democrats accusing Republicans of unfairly obstructing Obama’s picks for executive and judicial posts and Republicans contending that Democrats were subverting decades-old protections for the minority party.

Yet the immediate stakes in the NLRB case shrank a few weeks after the court accepted the case last June when Senate Republicans and Democrats reached an agreement that cleared the way for confirmation of two new NLRB nominees, plus Cordray.

Then late last year, Senate Majority Leader Harry Reid changed the chamber’s rules to allow approval of all nominees, except those to the Supreme Court, by a simple majority rather than 60 votes. The move effectively stripped the minority party of the power to block almost all of Obama’s nominees.

‘Right Thing’

“Since President Obama took office, Senate Republicans have done everything possible to deny qualified nominees from receiving a fair up-or-down vote,” Reid, a Nevada Democrat, said in a statement. “President Obama did the right thing when he made these appointments on behalf of American workers.”

Senate Minority Leader Mitch McConnell, a Kentucky Republican, said in an e-mailed statement, “This administration has a tendency to abide by laws that it likes and to disregard those it doesn’t.”

“The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent,” McConnell said.

The case is National Labor Relations Board v. Canning, 12-1281.

The opinion was one of the last in the court’s nine-month term. Roberts today said the court will issue its final opinions on June 30. In one case, the court will decide whether companies can claim a religious exemption from the requirement that they offer birth-control coverage in their worker health plans.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Patrick Oster at poster@bloomberg.net Mark McQuillan, Laurie Asseo

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